Upload
mariner12
View
226
Download
0
Embed Size (px)
Citation preview
7/31/2019 Transcript 9.28.10 Dipple Marsden
1/69
SUPERIOR COURT OF NEW JERSEYLAW DIVISIONCIVIL PARTUNION COUNTY, NEW JERSEYDOCKET NO.: UNN-L-140-08
A.D. NO.: ____________
CRANFORD DEVELOPMENT )ASSOCIATES )
)Plaintiff ) TRANSCRIPT
)vs. ) OF
)TOWNSHIP OF CRANFORD ) TRIAL
)Defendant )
Place: Union County CourthouseTwo Broad StreetElizabeth, New Jersey 07207
Date: September 28, 2010A.M. Session
BEFORE:
THE HONORABLE LISA F. CHRYSTAL, J.S.C.
TRANSCRIPT ORDERED BY:
CARL R. WOODWARD, ESQ.(Carella, Byrne, Bain,Gilfillan, Cecchi, Stewart & Olstein)
APPEARANCES:
STEPHEN M. EISDORFER, ESQ. (Hill, Wallack, LLP)Attorney for the Plaintiff
CARL R. WOODWARD, ESQ. (Carella, Byrne, Bain,Attorney for the Defendant Gilfillan, Cecchi,
Stewart & Olstein)
REGINA CALDWELL
UTOMATED TRANSCRIPTION SERVICESP.O. Box 1582
Laurel Springs, New Jersey 08081(856) 784-4276
SOUND RECORDEDOperator: Smishkewych
7/31/2019 Transcript 9.28.10 Dipple Marsden
2/69
2
I N D E X
September 28, 2010 - A.M. Session
DIRECT CROSS REDIRECT RECROSS
PLAINTIFFS WITNESS:
Mr. Dipple 3 24 30
DEFENSE WITNESS:
Mr. Marsden 32 50 66 67(Eisdorfer) (Eisdorfer)
63(McKenzie)
EXHIBITS IDENTIFIED EVIDENCE
D-159 Control Point Survey 18
D-162 3/31/10 Plans 14
D-180 Mr. Marsdens Report - 9/16/10 33
D-184 Mr. Dipples Letter - 9/2/10 15
7/31/2019 Transcript 9.28.10 Dipple Marsden
3/69
Mr. Dipple - Cross 3
THE COURT: Welcome back, everyone.1
MR. WOODWARD: Good morning, Your Honor.2
THE COURT: You can resume the stand and3
youre still under oath. Were on the record?4
COURT PERSONNEL: Yes, Your Honor.5
THE COURT: Okay.6
MR. WOODWARD: Thank you, Your Honor.7
MICHAEL DIPPLE, PLAINTIFFS WITNESS, PREVIOUSLY SWORN8
CROSS-EXAMINATION BY MR. WOODWARD:9
Q. Mr. Dipple, Im going to show you P-63A,10
which is your site analysis dated July 30, 2010.11
Youve seen that before, correct?12
A. I have, yes.13
Q. All right. I just want to revisit the issue14
of fire trucks for a minute. If a fire truck, during a15
flooded stay -- during a flood, has to come into this16
property, would it come in on the easterly side17
driveway and circle through? If Birchwood Avenue was18
flooded, based on your knowledge of Birchwood Avenue?19
A. Yes. I suppose if the flood was extreme enough to20
pass the -- at the same time there was a fire, the21
flood was high enough to surpass the western most22
driveway, then yeah, they would enter the eastern23
driveway.24
Q. Now, is there any ability for a fire truck,25
7/31/2019 Transcript 9.28.10 Dipple Marsden
4/69
Mr. Dipple - Cross 4
assuming you couldnt get out the westerly driveway, if1
it came in the easterly driveway, to turn around, based2
on this plan?3
A. No, I dont think it could -- well, it may be able4
to back up underneath Building A, potentially. But,5
again, the floodwaters are only for a period of hours.6
So, in some cases the extreme floods may only be there7
for a period of hours, so.8
Q. So, a fire truck could be stuck there for a9
period of hours?10
A. If --11
Q. Without being able to get out or turn around?12
A. If a fire coincided with a hundred year flood13
event, I suppose that he would have to wait a couple14
hours to turn his truck around.15
Q. Well, one other thing. I mean if a fire16
truck had to come on to this site during a major flood17
event, and came in on the easterly sideline and is up18
here in the -- fighting a fire in Building A or19
Building B, and Birchwood Avenue is flooded, how would20
the other people, the residents, get out? Could the21
people from Building A get out?22
A. Well, Im --23
Q. Drive their cars out, I mean.24
A. From Building A?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
5/69
Mr. Dipple - Cross 5
Q. Yeah.1
A. If the fire truck was blocking the exit, would2
they remove their cars, I dont know. I dont know3
where the truck would be. The road is 24 feet wide and4
thats passable by two vehicles in either direction.5
So, if the truck was on the access road, yes, they6
could drive right past it. A standard truck is nine,7
ten feet wide and I believe we have minimum, per8
Cranford standards, of 24 feet wide aisles, so.9
Q. Now, with respect to the photo you were shown10
yesterday, D-172, --11
A. Yes.12
Q. -- which is a photograph of the parking lot13
taken by Mr. Marsden.14
A. Yes.15
Q. Do you recall that?16
A. I do.17
Q. Okay. Now, what was the height above the18
parking lot that that photograph was taken?19
A. What was the height above the parking --20
Q. Yeah. I mean it was taken at eyelevel,21
correct?22
A. Okay, yeah. Yeah. Sorry.23
Q. About five feet?24
A. I would say, yeah, about five feet, Id say.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
6/69
Mr. Dipple - Cross 6
Q. Yes. And the distance to the back of the1
parking lot is about four or 500 feet, isnt it?2
A. Potentially, yeah.3
Q. So, we have a very shallow angle trying to4
determine whether theres any water in the back?5
A. Yeah. It looks like theres not. Thats what Im6
saying.7
Q. But you really cant tell, can you, from that8
angle?9
A. Thats the -- the summary we made, from looking at10
that photograph, was that theres flooding in the front11
and not in the back.12
Q. You werent there at the site when this13
photograph was taken, were you, sir?14
A. No.15
Q. In fact, youve never been on the site with a16
major -- with a significant rainfall like this, have17
you?18
A. I dont know how significant that rainfall is, but19
I have been on the site on rainfall events, yes.20
Q. Well, where this parking lot was this21
flooded?22
A. Mr. Woodward, the pipe was clogged --23
Q. Can you answer my question, sir? Yes or no?24
A. I dont know. I asked -- I answered your25
7/31/2019 Transcript 9.28.10 Dipple Marsden
7/69
Mr. Dipple - Cross 7
question.1
Q. Now, you testified yesterday, as I recollect,2
that the storm water system design that you were coming3
up with -- Im showing you P-91 for identification.4
A. Yes.5
Q. Now, this kind of storm water design and the6
analysis that went into that was typical of what you do7
for clients during your due diligence, correct?8
A. Yes, something like that.9
Q. Well, did you say that or didnt you?10
A. I did say that. That is what we -- this kind of11
analysis is what we do for due diligence. In fact, Im12
doing it right now on another project.13
Q. All right. You did your due diligence in14
this -- on this project back in 2008, didnt you?15
A. The original site investigation report was done in16
2008, yes.17
Q. Well, that was -- there was a design put18
together at that point, wasnt there?19
A. No. There was a sketch, there was a site sketch20
by Lasar (phonetic), the architect. But the due21
diligence report doesnt typically include a storm22
water management design.23
Q. So, what you did was not due diligence back24
in 2008?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
8/69
Mr. Dipple - Cross 8
A. You can call it -- I dont know what term youre1
using. Its called site investigation report and its2
-- it -- the scope of the site investigation report was3
given to my client and he signed off on it. And whats4
included in the report is what he asked me to do.5
Q. But you used the term yesterday due6
diligence. Did you consider that to be due diligence7
by a poten -- by a prospective buyer of a piece of8
property?9
A. It is a form of due diligence, I would agree. You10
know, I dont have the Websters definition of due11
diligence in front of me, but its a -- the report -- I12
may have said that, but the report is site13
investigation report. That is what we prepared.14
Q. So, what you did in 2008 wasnt due15
diligence?16
A. Sir, I dont agree with that, no. I dont agree17
with that assessment. We use the term due diligence as18
a means of investigation into issues and we highlight19
them. If you want to call it due diligence, you can.20
If you dont, if you want to show me that I have the21
definition wrong, please do so.22
Q. Well, you, in that site investigation report,23
didnt do any flood hazard analysis, did you?24
A. No, we did not.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
9/69
Mr. Dipple - Cross 9
Q. You didnt do any storm water analysis, did1
you?2
A. No, I believe we commented on storm water, though.3
There is some -- I would say no. I dont have the4
report in front of me. Could I be provided with that5
report?6
Q. Well, what do you remember?7
A. I would like to see the report, if I can answer8
questions in an exhibit correct.9
Q. Well, okay. Well take a minute and get your10
report. Hold on.11
A. Okay.12
Q. Im going to show you whats been marked for13
identification as a report dated D -- or document D-43,14
Site Investigation Report, dated May 21, 2008. Im15
going to show it to you. Have you ever seen that16
before?17
A. I have, yes.18
Q. Is this the report you prepared?19
A. Yes.20
Q. Okay. You said you wanted to review it.21
Please take your time and review it.22
A. Yes, theres a section, Section 6, called Storm23
Water Management, where we discuss the storm water24
management rule and how it would apply to this project,25
7/31/2019 Transcript 9.28.10 Dipple Marsden
10/69
Mr. Dipple - Cross 10
and we provide a summary of that and some1
recommendations.2
Q. And your recommendation at this point was3
just to limit it to the impervious surface to that4
which currently exists, correct?5
A. Thats correct.6
Q. So, you didnt take into account the parking7
lot behind the building at 215 Birchwood, did you?8
A. No. I dont believe we had a survey of the9
parking lot at this point. So, I dont think I10
couldve done that.11
Q. Now, you said yesterday, as I recollect, that12
your August 19th report -- withdraw the question. Now,13
I think you have up there P-87, which is your report of14
August 19. Here we go, P-87.15
A. Yes.16
Q. Now, I think you said that this is what17
constituted the type of due diligence you do nowadays,18
correct?19
A. I -- its a conceptual storm water management20
analysis. If I used the term due diligence, then so be21
it. I -- this is what it is. Its a conceptual storm22
water analysis.23
Q. But you were told by Mr. Marsden about the24
storm drainage issue with respect to that parking lot25
7/31/2019 Transcript 9.28.10 Dipple Marsden
11/69
Mr. Dipple - Cross 11
back in 2009, werent you? When you met with him?1
A. Mr. Marsden pointed out depressions throughout the2
site, which we incorporated into the design. The3
conceptual storm water management analysis, I should4
say, not the design. And he pointed out the valves and5
rendered an opinion on the valves at that point, yes.6
Q. And the valves were part of a storm water7
detention system that involved that parking lot, isnt8
that what he told you?9
A. Thats what he told me.10
Q. So, in 2009, I think you said July of 2009,11
you knew at least that the township engineer was12
telling you this was an area that needed to be studied.13
But you didnt study that until August of 2010, did14
you?15
A. I was not asked to study it, no.16
Q. Now, Mr. Creelman submitted a report, back in17
October of 2009, in which he told you that there was a18
flood hazard problem on this site, didnt he?19
MR. EISDORFER: Your Honor, this question has20
been asked and answered previously.21
THE COURT: Its cross-examination, so Ill22
allow it.23
CONTINUED BY MR. WOODWARD:24
Q. Did you hear the question, sir?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
12/69
Mr. Dipple - Cross 12
A. Can you just repeat it? Im sorry, I --1
Q. Sure. Mr. Creelman submitted a report, in2
October of 2009, in which he said that there was a3
flood hazard area problem on this site, correct?4
A. I dont have the report in front of me, but the5
issue is what methodology needs to be used in order to6
determine the flood hazard area elevation. Where we7
held the position that number -- that method three8
could be used, he told us that method six needed to be9
used. In the end it was method six, by the DEP10
criteria, that was needed to determine the flood hazard11
area elevation. So, it was a question of methodology.12
Q. Well, didnt you, in your October 29, 200913
report, P-37, state, and I quote, Therefore, it is our14
professional opinion that a flood hazard area permit15
does not apply to the proposed development?16
A. Yes.17
Q. That was your statement on October --18
A. Yes.19
Q. -- 29, 2009, correct?20
A. Thats correct. Because I was using method three21
and if you can use method three, you do not need a22
flood hazard area permit. Thats what I thought at the23
time.24
Q. And you were mistaken, werent you?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
13/69
Mr. Dipple - Cross 13
A. I was mistaken and method six was the correct1
method.2
Q. In fact, in February of 2010, you wrote a3
letter concurring with Mr. Creelmans analysis that4
method six had to be used, correct?5
A. I believe I testified to this. Yes, Mr. -- weve6
agreed that, in written form and in testimony, that Mr.7
Creelmans assessment of method six being the correct8
method is correct, yes.9
Q. And in that you also said however, that10
wouldnt change the site design, isnt that correct?11
A. Wouldnt change the site design?12
Q. Yeah.13
A. I dont know. Is that in my report? I dont have14
the report in front of me. Did I say it wouldnt15
change the site design, I dont recall that.16
Q. In March 31, 2010, March 31, you submitted a17
new plan, correct?18
A. Yes, there was new plans prepared by Lasar Group,19
you know, with our input, thats correct.20
Q. And that plan recognized that there was a21
major change in the site design, correct?22
A. The Building A was reoriented to stay out of the23
floodway, thats correct.24
Q. And showing you whats been marked as D-16225
7/31/2019 Transcript 9.28.10 Dipple Marsden
14/69
Mr. Dipple - Cross 14
for identification -- here, you can take a look at it1
up close -- thats the March 31 plan that was2
submitted, correct?3
A. Thats correct.4
THE COURT: D, what is it?5
MR. WOODWARD: D-162, Your Honor.6
THE COURT: Thank you.7
CONTINUED BY MR. WOODWARD:8
Q. And in July 30, its been marked as P-63A,9
still another plan was submitted, correct?10
A. I believe another -- I guess another plan was11
submitted. I think it was a correction to the parking.12
I dont recall, but that looks the same. But perhaps I13
could see the two together and I could --14
Q. Well, I mean the driveways were changed,15
werent they?16
A. Yes, some of the parking. As I just mentioned, it17
was the parking that was changed. This doesnt include18
parking under Building A, this one does. So, when you19
take the parking out you need less surface stalls. I20
believe this one was in error and this one is correct.21
Q. So, the one, P-1 -- D-162, the March 31,22
2010, was in error, correct?23
A. Yes. I believe the Lasar Group forgot to add the24
parking under the podium -- the podium parking, excuse25
7/31/2019 Transcript 9.28.10 Dipple Marsden
15/69
Mr. Dipple - Cross 15
me, in Building A.1
Q. And by the way, the reason that Building A2
was moved, in your March 31 plan, was because after you3
had done the flood hazard study using method six, you4
found out that almost the entire building was in the5
floodway, correct?6
A. Thats correct, yes.7
Q. Im going to show you what was marked as D-8
25C in evidence, ask you if youve seen this picture9
before?10
A. I have, yes. I believe so, yes.11
Q. And that picture is of Birchwood Avenue in a12
flooded condition, correct?13
A. Thats correct, yes.14
Q. Look at the right-hand side, isnt there a15
fire truck in the parking lot of the building across16
the street?17
A. Yes, there is.18
Q. And you dont see the fire truck driving down19
the center of Birchwood when its flooded, do you?20
A. No.21
Q. Thank you. Im going to show you whats been22
marked as D-184 for identification. Its a letter23
dated September 2, 2010.24
A. Yes.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
16/69
Mr. Dipple - Cross 16
THE COURT: I dont have it.1
MR. WOODWARD: I think you should.2
THE COURT: D-184?3
MR. WOODWARD: Yeah. Its September 2, 2010.4
If you want, Ill give you this extra copy.5
THE COURT: Okay, maybe I dont. Did you6
hand it to me?7
MR. WOODWARD: I think I --8
THE COURT: Because its not in the binder.9
UNIDENTIFIED SPEAKER: Yeah, it was handed10
out yesterday, Your Honor.11
MR. WOODWARD: I think I handed them out12
yesterday.13
THE COURT: Oh.14
MR. WOODWARD: It was late. Its that late15
report.16
THE COURT: Okay.17
CONTINUED BY MR. WOODWARD:18
Q. Now, this is a documentation or a letter that19
you wrote on September 2nd, 2010 to Mr. Eisdorfer,20
correct?21
A. Yes.22
Q. And this was provided in response to a letter23
from me, dated August 26th, with -- regarding24
supporting data for your report of August 19th,25
7/31/2019 Transcript 9.28.10 Dipple Marsden
17/69
Mr. Dipple - Cross 17
correct?1
A. Yes.2
Q. Okay. Now, lets just take a look at the3
items that youve listed there. Item number one, you4
made certain assumptions about drainage areas, existing5
drainage area three and drainage area two, correct?6
A. Yes.7
Q. And you did that because you didnt have8
sufficient time to work it all out, correct?9
A. Yeah. I think, you know, wed probably break that10
area up as I testified yesterday and yeah, the time11
constraint, and I also think its pointless, but yes.12
Q. Now, next, on item three, you say youve not13
prepared a full comparison of time versus flow for14
storm water runoff from the property. Do you see that?15
A. Yes, I do.16
Q. And you didnt think that was appropriate at17
this time so that we would know what the time versus18
flow analysis would be?19
A. Yeah, I think theres a lot more that goes into it20
than a conceptual design to make that determination.21
Theres real pipes, theres real grades, theres real22
channels, potentially, and yeah, thats a pretty big23
analysis. And I -- right, I didnt -- I showed the24
reductions and I felt that was sufficient.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
18/69
Mr. Dipple - Cross 18
Q. You felt that was sufficient, but if1
someones going to analyze it, they dont have the2
ability to analyze it thoroughly the way if -- as if it3
would be if it had been properly prepared, correct?4
A. In order to prepare that analysis you would need5
full site plan design and that -- theres no time for6
that.7
Q. Now, item four, pipe invert and size8
information for the predevelopment conditions were9
taken from the survey by Control Point. Just so I want10
to make sure that we have everything tied together, the11
survey by Control Point is this document, D-159,12
correct?13
A. Yes.14
Q. Thats the survey that you based this15
analysis on?16
A. That is.17
Q. And then you also took some documentation18
prepared by Mr. Marsden of certain elevations and19
compared them and certain sizes and compared them to20
what was on that survey, correct?21
A. Thats correct, yeah.22
Q. And if there was a dispute, if there was a23
disagreement in the numbers, you accepted Mr. Marsdens24
numbers, correct?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
19/69
Mr. Dipple - Cross 19
A. I believe so, yes. Yes. Yeah, and I go on to say1
we confirmed it.2
Q. Now, you also say, in item five, you talk3
about pond reports, but at the very end you include a4
statement, the storm sewer system shown in the5
information provided is conceptual. Therefore, no6
storm sewer calculations were made. Correct?7
A. Yes, yes.8
Q. So, we dont know whether numerically these9
-- the system works properly, do we?10
A. The storm sewer system?11
Q. Yeah.12
A. No, I wasnt asked to do a storm sewer design. I13
mean its -- it was a detention basin conceptual -- a14
detention basin analysis. The storm sewers just showed15
the direction which they would discharge toward the16
ditch. There was no --17
Q. Okay. Now -- oh, that reminds me. One other18
thing, with respect to your comments regarding the plan19
of July 30, 2010, I think you were testifying about20
this. This is P-63A. You were talking about how --21
maybe this is the wrong one. Excuse me. Withdrawn.22
P-90.23
A. Yes.24
Q. P-90 you testified about yesterday as showing25
7/31/2019 Transcript 9.28.10 Dipple Marsden
20/69
Mr. Dipple - Cross 20
the proposed existing -- excuse me, proposed drainage1
area map, correct?2
A. Yes. Yes, correct.3
Q. All right. And you were asked about, by Mr.4
Eisdorfer, about the areas that are within these5
indentations in Building B. Do you see that?6
A. Yeah, I do.7
Q. Okay. Now, you said that a way of getting8
this water out of here --9
A. Yes.10
Q. -- would be to pipe it under the road,11
correct?12
A. If it were to be designed that way. That wasnt13
part of the detention system, yes. But this is a14
conceptual --15
Q. And -- but if you were to do that, those16
pipes would have to run underneath the road and out17
into the wetlands area, correct?18
A. Yeah, they would probably discharge at the base of19
the wall, yes.20
Q. Yeah. And youd need a DEP permit for that?21
A. For a discharge to the wetlands, I think within22
the transition area you may, yeah.23
Q. Oh. The -- this is -- Im showing you P-9124
again, the storm detention system.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
21/69
Mr. Dipple - Cross 21
A. Yes.1
Q. What is the size of them again?2
A. I believe, --3
Q. I think you said --4
A. -- if my memory serves me right, its 35,000 cubic5
feet in total. So, divide that roughly by three, so6
theyre maybe 12,000 each. I think one of thems shown7
a little smaller, but, you know, roughly.8
Q. And dimension wise the -- theyre pretty9
shallow, like maybe 30 inches high I think you said?10
A. I think so. Just thats what we used as an11
initial conceptual takeout, it was, you know, 3012
inches.13
Q. Two and a half feet?14
A. Yes.15
Q. All right, and their dimension?16
A. Oh. I think I said 140, maybe, by 40 on one of17
them. The one on the right I think was the one I gave18
the dimensions. I mean I have a scale here, I could19
check, but --20
Q. What would be the elevation at which would be21
the bottom of these tanks?22
A. Id have to look at my analysis. One second.23
Q. Could I know what youre looking at?24
A. Im looking at P-88, which is the --25
7/31/2019 Transcript 9.28.10 Dipple Marsden
22/69
Mr. Dipple - Cross 22
Q. Got it.1
A. -- conceptual hydrologic and hydraulic analysis.2
Q. Thank you.3
A. And I have them at 75.85, 75.85.4
Q. The bottom would be -- the elevation would be5
75.8 --6
A. 75.85, yeah. Thats what my analysis shows.7
THE COURT: What page are we on?8
THE WITNESS: Im sorry. I -- that same --9
about ten pages in, that same pond report. And it10
looks like that.11
MR. WOODWARD: So I can see.12
THE WITNESS: Keep going. I think its13
coming up. Its -- heres 75.85.14
MR. WOODWARD: This is what I think --15
THE WITNESS: Well, its -- I think its --16
its this one. Oh, no, Im sorry. Im looking at the17
wrong page. I apologize, theres no page numbers. My18
output doesnt give me page numbers. Im going to19
amend that. Its 76. Its not that much different.20
And Im looking at this page. The elevations 76.21
THE COURT: Which page?22
THE WITNESS: Now it looks like that. Its23
kind of a -- Im going to say its not quite halfway24
through the report.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
23/69
Mr. Dipple - Cross 23
THE COURT: The pond report?1
THE WITNESS: Yeah, but thats not the right2
one. Just keep going a little bit further.3
THE COURT: Maybe we should take a break and4
number the pages.5
THE WITNESS: Thats it. Thats it. And if6
you look right here, I have elevation on the bottom,7
76, under state storage takeout.8
THE COURT: Thank you.9
CONTINUED BY MR. WOODWARD:10
Q. Now, you designed that so that it was11
slightly above the invert elevation of the discharge12
pipe at the ditch, correct?13
A. Thats correct.14
Q. So, if theres a flood and theres no flood15
restriction, tail water can back up into that, correct?16
A. Thats correct, yeah. On -- in that analysis,17
right, yeah.18
Q. Wouldnt you -- wouldnt it be better to --19
withdraw the question. So, your design does not take20
into account the impact of tail water?21
A. No. I testified to that. Nor does it take it22
into consideration on existing conditions, so.23
MR. WOODWARD: No further questions, Your24
Honor.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
24/69
Mr. Dipple - Redirect 24
THE COURT: Any redirect?1
MR. EISDORFER: Just --2
REDIRECT EXAMINATION BY MR. EISDORFER:3
Q. Mr. Dipple, are you familiar with Residential4
Site Improvement Standards?5
A. I am.6
THE COURT: I didnt hear your question.7
MR. EISDORFER: Im sorry.8
CONTINUED BY MR. EISDORFER:9
Q. Mr. Dipple, are you familiar with Residential10
Site Improvement Standards?11
A. I am, yes.12
Q. Can you tell us what they are?13
A. It was standards, I believe --14
MR. WOODWARD: Objection, Your Honor. This15
goes beyond the scope of direct.16
MR. EISDORFER: No, it does not. You asked17
that driveway. So, Im going to ask some questions of18
that driveway.19
THE COURT: Okay.20
MR. WOODWARD: Excuse me, Your Honor.21
Driveways were asked in direct. Specifically, there22
was a discussion of driveways on direct. I cross-23
examined him on it.24
MR. EISDORFER: Yes, and Im going to follow25
7/31/2019 Transcript 9.28.10 Dipple Marsden
25/69
Mr. Dipple - Redirect 25
up that cross-examination.1
THE COURT: Let me just hear where this is2
going, okay?3
MR. WOODWARD: All right.4
CONTINUED BY MR. EISDORFER:5
Q. Can you tell us what the Residential Site6
Improvement Standards are?7
A. In brief, they govern -- I believe its a document8
that is -- was prepared and is governed -- or is part9
of the Department of Community Affairs, which regulates10
residential construction throughout the State of New11
Jersey. I believe it was an attempt to standardize12
residential construction, you know, throughout the13
state.14
Q. And does that have standards governing15
driveways, in terms of circulation?16
A. Yes, it does.17
Q. And do those standards reflect safety18
considerations?19
A. Yes, I believe they do.20
Q. Is this compliant with the RSIS standards?21
MR. WOODWARD: Your Honor, Im going to22
object because there was no testimony on direct about23
whether this complies with RSIS or not.24
MR. EISDORFER: Your Honor, the -- he was25
7/31/2019 Transcript 9.28.10 Dipple Marsden
26/69
Mr. Dipple - Redirect 26
questioned on whether the driveway is adequate for fire1
equipment. RSIS is a uniform state standard that2
reflects all those and the testimonys going to be if3
this was compliant with the RSIS.4
THE COURT: I mean, you know, I assume it5
complies. Thats not the point. I mean -- to that6
extent Im going to allow it.7
BY THE WITNESS:8
A. I believe that -- I believe the width of the9
driveway complies with the RSIS standards. Again, this10
is not a developed site plan, a designed site plan.11
So, yeah, there may have to be some engineering that12
goes into this for full compliance, yes.13
Q. Now, you were asked questions about different14
soil characteristics.15
A. Yes.16
Q. Do you recall that?17
A. Yes.18
Q. Now, can -- and you indicated that some of19
the soils were Class C --20
A. Yes.21
Q. -- and Class D.22
A. Thats correct.23
Q. Can you come and point out to us --24
A. Yes.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
27/69
Mr. Dipple - Redirect 27
Q. -- where the Class C and Class D soils are?1
A. Yes.2
Q. Im asking you to point it out in connection3
with your existing drainage area maps, which is P-89, I4
guess.5
A. Right. I -- okay. So, the soil on this side of6
the site is the Haledon type and the soil thats over7
here on this side of the site is the Passaic type. And8
based upon the soil map that was provided as part of9
Exhibit D-184, Im just going to trace with my finger10
about where the soil line is. Its right about here11
and then it goes this way. And then it looks like it12
comes out this way and then makes its way down to13
Wildhorse Terrace. It kind of bows out right in here14
somewhere.15
Q. Now, which is Class C and which is Class --16
A. This is C on this side and that is hydrologic soil17
group D. Its -- thats the official term, hydrologic18
soil group.19
Q. So, now in drainage area -- where would the20
-- well, for which of these drainage areas would the21
soil type have an impact on your analysis?22
A. Drainage area three, proposed -- are you speaking23
of proposed?24
Q. Yeah. No, --25
7/31/2019 Transcript 9.28.10 Dipple Marsden
28/69
Mr. Dipple - Redirect 28
A. Youre looking at the proposed drainage area. No,1
Im sorry, youre looking at existing.2
Q. Existing. Existing.3
A. I apologize. Existing drainage area three.4
Q. Okay. And based on what youve just shown us5
is drainage area three entirely in Class C?6
A. No. No, theres a significant part of drainage7
area three that is Class -- or hydrologic soil group C8
and theres a significant area in hydrologic soil group9
D.10
Q. In practical terms, would it have made any11
practical difference in the outcome if you had treated12
that as partially in C and partially in D?13
A. No. Basically, youre going to get a little more14
runoff in the Class D soil. So, if you take half of15
that, lets say its half. I dont know what the split16
is. Say half of its C, half of its D. Its just17
going to bump up incrementally. So, your existing18
conditions runoff rate is going to go up a little bit19
and your proposed conditions runoff rate is going to20
go up a little bit. So, were only comparising --21
comparing the difference between the two. So, its22
kind of a sliding scale. If they go up a little bit,23
were only looking at the difference. And we actually24
ran all of drainage area three with D and it made no25
7/31/2019 Transcript 9.28.10 Dipple Marsden
29/69
Mr. Dipple - Redirect 29
difference in the change between the two flow rates.1
MR. WOODWARD: Objection, Your Honor.2
Theres nothing in his testimony which he just gave in3
any of his reports.4
MR. EISDORFER: Your Honor, the door was5
opened. He was cross-examined on this.6
THE COURT: Do you have anything else on7
this?8
MR. EISDORFER: No, I dont.9
THE COURT: Okay, then move on.10
CONTINUED BY MR. EISDORFER:11
Q. You were shown a New Jersey Department of12
Transit manual.13
A. Department of Transportation, yes.14
Q. Department of Transportation, sorry, --15
A. Yes.16
Q. -- manual concerning the calculation of storm17
water and you testified that that was not the18
appropriate manual. Do you know what the appropriate19
manual is?20
A. Yes. Its the Best Management Practices manual,21
which is referenced in the storm water management rule.22
The storm water management rule references back and23
puts some of the engineering standards into the Best24
Management Practices manual.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
30/69
Mr. Dipple - Redirect 30
Q. Does that have the same standard for1
sheeploads as the DOT manual?2
A. No, it doesnt. Its different than the DOT3
manual.4
Q. And what is that standard? What is the5
standard in the DEP manual?6
A. The standard in the DEP manual, the Best7
Management Practices manual, its actually called the8
New Jersey Storm Water Best Management Practices9
manual. Its in chapter five and it states the maximum10
sheepload length recommended by the NRCS is 150 feet.11
According to the NRCS, longer lengths may be used only12
in special cases, such as smooth, uniformly graded13
parking lots.14
MR. EISDORFER: I have no further questions.15
THE COURT: Anything else, Mr. Woodward?16
RECROSS-EXAMINATION BY MR. WOODWARD:17
Q. Mr. Dipple, when you did -- when you were18
just asked those questions by Mr. Eisdorfer, you were19
referring to a -- you said you could use it for a20
parking lot, but the proposal here is not to build a21
parking lot, is it? Its to build a building with22
driveways, correct?23
A. But Im analyzing the existing -- the common24
concentration issue revolves around existing conditions25
7/31/2019 Transcript 9.28.10 Dipple Marsden
31/69
Mr. Dipple - Recross 31
of drainage area one and that is a parking lot.1
Q. Now, with respect to the Passaic soils that2
you mentioned, at least half the site is that class3
type D soils, correct?4
A. Im going to say yes, about half.5
Q. And isnt there a procedure under the TR-556
that you have to use a worksheet and put the numbers7
down, do an analysis, do an averaging? Did you do8
that?9
A. Its a weighted average.10
Q. Did you do that?11
A. I didnt include the type D, no. I was12
simplifying the analysis.13
MR. WOODWARD: Okay. No further questions,14
Your Honor.15
THE COURT: Anything else?16
MR. EISDORFER: Not from me. I dont know --17
THE COURT: Okay, you can step down. Thank18
you. Oh, wait a minute. Ms. McKenzie?19
MR. EISDORFER: I dont know if Ms. McKenzie20
has questions.21
MS. MC KENZIE: I dont think I have any22
questions.23
THE COURT: No?24
MS. MC KENZIE: No, Your Honor. Thank you.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
32/69
Mr. Marsden - Direct 32
THE COURT: Okay, you could step down.1
THE WITNESS: Thank you.2
THE COURT: Mr. Eisdorfer, anything further?3
MR. EISDORFER: I have no further witnesses.4
THE COURT: Okay. So, the Plaintiff rests5
subject to the admission of the evidence.6
MR. EISDORFER: Thats correct.7
THE COURT: Okay. So, why dont we take ten8
minutes and your witness?9
(Off record. Back on record.)10
THE COURT: All right. Mr. Woodward?11
MR. WOODWARD: Thank you, Your Honor. Id12
call Richard Marsden to the stand.13
RICHARD A. MARSDEN, JR., DEFENSE WITNESS, SWORN14
COURT PERSONNEL: Please state your name for15
the record.16
THE WITNESS: Richard Arnold Marsden, Jr.17
MR. WOODWARD: Thank you.18
DIRECT EXAMINATION BY MR. WOODWARD:19
Q. Mr. Marsden, youre the township engineer for20
Cranford?21
A. Yes.22
Q. And you previously testified in this case,23
correct?24
A. Correct.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
33/69
Mr. Marsden - Direct 33
Q. Subsequent to your testimony there were a1
couple reports produced by Mr. Dipple and Im going to2
show them to you. One is dated August 19th, 2010, and3
bears exhibit number P-87D, and with it is a conceptual4
hydrologic and hydraulic analysis of P-88, plus a5
series of drawings, including one thats labeled P-92,6
P-89, P-86, P-91 and P-90. And Im going to ask you if7
youve ever seen those documents before?8
A. I have.9
Q. And in addition, there was a document dated10
September 2, 2010, which has been marked for11
identification as D-184. And have you ever seen that12
before?13
A. Yes.14
Q. Have you reviewed those documents?15
A. I have.16
Q. And as a result of your review, did you17
prepare a report?18
A. Yes, I did.19
Q. And Im going to show you whats been marked20
as D-180 for identification. And its dated September21
16, 2010. Take a moment to look at it, D-180. Is this22
a copy of your report?23
A. Yes, it is.24
Q. Now, could you tell us what documents you25
7/31/2019 Transcript 9.28.10 Dipple Marsden
34/69
Mr. Marsden - Direct 34
reviewed in preparing this report?1
A. Well, as it states in the report, I reviewed the2
L2A letter, dated September 2nd; the August report,3
dated August 19th; the conceptual hydraulic and4
hydrologic analyses, dated August 19th; their maps5
entitled Proposed Drainage Area Map, dated August6
19th; the existing drainage area map, dated August 19th;7
the parking lot, storage exhibit map, dated August8
19th, and the conceptual basin location plan, dated9
August 19th.10
Q. Now, based upon your review of those11
documents and your analysis as a professional engineer,12
could you tell us whether you reached any conclusions13
regarding the content of the report and the letter and14
the various documents you reviewed?15
A. Yes, I did.16
Q. Could you tell us what your -- in summary,17
what your conclusions were?18
A. Well, in summary, my conclusions were that there19
were two assumptions that were made that were not20
correct. One is that the gate valves were assumed21
completely open and the second one is the assumption22
that the proposed design that regulated the outflow23
elevation would be higher than the flood elevation.24
Q. All right. Well, lets talk about the first25
7/31/2019 Transcript 9.28.10 Dipple Marsden
35/69
Mr. Marsden - Direct 35
one, gate valves assumed to be completely open in the1
analysis. Could you tell me, or tell us what the2
significance of that is?3
A. Well, the assumption that the gate valves were4
completely open also assumes that, quite fra -- leads5
to the question of why are they there in the first6
place. If the gate valves were there, they would have7
a function. Trying to analyze what the functions would8
be, I can only come to the conclusion that it was a9
regulated outflow function, meaning that the gate valve10
was closed at some point to regulate the storm water11
system for detention on that parking lot.12
Q. Can you tell us what are the factors that13
lead to your conclusion that the parking lot was14
designed as a storm water detention facility?15
A. Well, the initial overriding factor, before any of16
these reports came into play, were when we looked at17
the parking lot and we saw the outflow chamber that led18
to the outflow of the storm water piping system through19
a gate valve. There are pipes that were entering this20
chamber that were larger than the pipe that left the21
chamber. And in that pipe that left the chamber there22
were gate valves. I tried to assume that well, what23
would those gate valves have as a function. Its not24
used for maintenance for backwater. Because if there25
7/31/2019 Transcript 9.28.10 Dipple Marsden
36/69
Mr. Marsden - Direct 36
was a backwater effect at the time of a large storm1
event, there would be no real velocities, thered be no2
real sediment depositing back into the piping system3
that would be a concern because everything would fall4
out. Because youre having a very large floodplain and5
the perimeter, the outer limits of the floodplain the6
velocities drop tremendously and in this ditch, thats7
the furthest point. So, I wasnt concerned, as a8
Public Works Director, that something like that would9
deal -- would be a backup. It just didnt make sense.10
Because it also leads to the first chamber, which also11
adds to a wider opening and would, in turn, reduce the12
velocities. Now, when I heard testimony that the pipes13
were clear, I -- it just confirms that the piping14
system flushes itself out for whatever little debris15
may have backed up into it, because those gate valves16
have been opened fully. So, it wasnt that. The only17
conclusion I can come to is that these gate valves were18
there to regulate the outflow. Why would an engineer19
spend the money, or recommend spending the money, to20
put a gate valve when you had a twelve inch pipe that21
wouldve done the same thing.22
Q. So, the function of a gate valve is to do23
what?24
A. The function of a gate valve --25
7/31/2019 Transcript 9.28.10 Dipple Marsden
37/69
Mr. Marsden - Direct 37
Q. In your view.1
A. -- is to regulate the outflow. It would reduce2
the outflow to some degree that would be comparable to3
what the preexisting conditions were on that site. The4
-- in reducing the gate valve opening, it would have5
water backup, as has been testified from Mr. Dipple,6
that would fill the parking lot. In looking at the map7
of the parking lot, as it regulated its flow depth, it8
almost looked uniform, meaning that the parking lot was9
pretty much flat. If you --10
Q. Now -- go ahead. Im sorry.11
A. If you didnt need it there for storm water12
detention, you wouldnt have graded it such a way,13
because the terrain itself, on either end of that14
portion of the site, goes from elevation 81 at one15
point to 82. And at the drops where you can obviously16
see the fill, which was testified by, it goes to 77,17
78. So, theres a natural slope that was there. A18
design engineer, if he wasnt being required to do19
anything other than put a parking lot in, would pretty20
much do what Site 235 did, just put it down close to21
grade and pitch it so it drains towards the river.22
Q. Now, you say Site 235, and Im -- right now23
Im looking at --24
A. Building number. I guess its --25
7/31/2019 Transcript 9.28.10 Dipple Marsden
38/69
Mr. Marsden - Direct 38
Q. 235 is --1
A. Yeah.2
Q. -- on the far western side of the property?3
A. Thats correct.4
Q. And that parking lot, can you describe that5
parking lot?6
A. Well, that parking lot basically drains close to7
the grades. It appeared to be built close to the8
grades that are flat along the river, Casino Brook that9
is. And it drains from the parking lot down to the10
back and then out the back. There are no real inlet11
connections there that accommodate that. I think there12
may be two, but theres not a series of storm water13
detention systems and gate valves.14
Q. Now, take a look at whats been marked as P-15
92, which was an attachment to Mr. Dipples August 19th16
report. Could you tell us what this document is?17
A. Well, the --18
Q. Or what you understand it to be, I guess.19
A. Well, this document is -- it shows the storage of20
runoff at different elevations. The one in the upper21
left-hand corner has an elevation height, maximum22
storage height of 90 -- 79.2, and as you go clockwise,23
it goes 79.4, 79. -- oh, excuse me -- .6 and 79.8. It24
shows almost uniformly, through the blue filled in25
7/31/2019 Transcript 9.28.10 Dipple Marsden
39/69
Mr. Marsden - Direct 39
areas, that it fills up equally, like a bathtub not1
flushed or regularly. So, it was built, in my opinion,2
to act as a storm water detaining facility.3
Q. Now, I think when you testified earlier in4
this trial, Mr. Marsden, you testified as having5
designed systems somewhat like this during the 1970s?6
A. I mean -- that is correct. We did parking lot7
storage then. It was a cheap efficient way to detain8
water without going through, you know, additional9
costs, doing underground piping systems.10
Q. And do you know when this -- approximately11
when this building was constructed and that parking12
lot?13
A. Well, we believe it started around, I guess it was14
maybe completely constructed around 1976 or 74. I15
dont know specifically. I dont have that -- I dont16
know if I had a map showing it after that. I know it17
was after 1973.18
Q. Now, if there was a reduction in the flow19
through a gate valve, what impact, if any, would that20
have on the detention ability of that parking lot?21
A. Well, what would happen is, if there is -- if the22
gate flow was set at a certain reduction, more water23
would be stored in the parking lot. As you go from --24
referring back to Exhibit, was that P-92D -- FD? Im25
7/31/2019 Transcript 9.28.10 Dipple Marsden
40/69
Mr. Marsden - Direct 40
sorry.1
Q. I think its --2
A. I cant read that.3
Q. P-92 for identification.4
A. Oh, sorry. P-92, it shows that when they got to5
elevation 79.8 it really hadnt gone up to a large part6
of the curb. So, as it fills up the area becomes7
greater. Therefore, the volume becomes a lot larger8
per change in height. So, thered be a lot more9
storage capability in that parking lot. And in10
previous testimony, and in these reports, it showed11
that the weir or the spillway elevations were very12
close, within a half an inch of all three that were13
mentioned. It was, was it 81.13? No, 80.13 and 80.0714
and another one like that, which its quite a15
coincidence that they were all set close to the same16
for spillover.17
Q. Now, in terms of calculating what the flow18
from this should -- by the way, what is the purpose of19
detaining water on a site, such as this, through20
structures, such as you have described here?21
A. Well, the purpose is that engineers, the State22
Department of Environmental Protection, weve, for a23
long time, weve tried to regulate outflows from24
developed sites. Because when we put impervious cover,25
7/31/2019 Transcript 9.28.10 Dipple Marsden
41/69
Mr. Marsden - Direct 41
parking lots, buildings, on a site, it increases the1
rate of flow off the site and that rate of flow then2
enters your bodies of water quicker, sooner. So, at3
some point downstream theres now more water than there4
used to be. So, we try to regulate the outflow from5
the sites to what the existing or precondition was.6
One way of doing that is to provide detention7
structures, parking lot or in the ground structures,8
that hold that water out and regulate the outflow that9
would mimic the precondition.10
Q. Now, in this particular situation you11
indicated in your report that in order to determine how12
much the gate valve should function, you had to look at13
what the original site conditions were before14
development.15
A. Thats correct. And there is -- theres no16
information out there showing us what the gate valve17
regulation was. The only way you can do that is to18
back-step into it, meaning that you come back with the19
original concept of what the design criteria was, which20
was a wooded, or an undeveloped site, to a developed21
site with this impervious cover. Determine what the22
undeveloped site outflow was, pretty much what they did23
here except for they used the parking lot as the24
control assuming the gate valve was fully open. You25
7/31/2019 Transcript 9.28.10 Dipple Marsden
42/69
7/31/2019 Transcript 9.28.10 Dipple Marsden
43/69
Mr. Marsden - Direct 43
you disagree with. Could you go into that, talking1
about outflow elevation?2
A. Oh.3
Q. And --4
A. The other --5
Q. -- the storage facility.6
A. What that led to is, in reviewing the reports7
prepared by Mr. Dipple, one of the things you try to do8
is not to create a -- and I call it backwater for9
simple terms, but its tail water, or headwater effect.10
Tail water effect? Gosh, Im losing it. Anyway, its11
-- it is the backing up of the water that tries to get12
out of the system that cant get out because theres13
already water in the downstream portion of the system14
that it has to displace. The only way it is displaced15
is the increase in height of the water in the upstream16
system creating a head, which gives more weight to that17
water, which, by gravity, pushes it down and is able to18
push it out. That effect, if there is water already in19
the downstream system, will reduce the outflow of that20
pipe. It has the downstream ponding. Using the fact21
that in order to design it properly, which we do and I22
think Mr. Dipple stated, was that we have to build the23
outflow pretty much at what the flood elevation would24
be so there would be no backwater due to the -- upon25
7/31/2019 Transcript 9.28.10 Dipple Marsden
44/69
Mr. Marsden - Direct 44
that youre at maximum flood of the Casino Brook. In1
doing that youd have to raise that elevation to the2
height of the storm event elevation, which I believe3
was 78.6. Using that as just a very conceptual4
starting point, and not assuming any slopes and any5
pipes upstream, not assuming slopes to get the water to6
the inlets that would have to collect this water for7
the detention basin, we utilized what information was8
in the report. The report stated that theres 309
inches, the conceptual detention basin, or detention10
structure, that would have a height of 30 inches, which11
is two and a half feet, which is actually very good.12
Its one of the more common ways we do it because its13
more efficient. If you start going higher and deeper,14
you get more troubles. Narrower and wider it becomes a15
maintenance issue. So -- and its an acceptable16
practice and I agree there. But when you add up what17
elevations, 78.6, plus two and a half feet, that gives18
you 80.1 -- 81. Let me look at my report. My math19
skills as I get older.20
Q. Please, go ahead.21
A. 80 -- 78 outflow structure. Yeah, it gives you22
elevation 81, you know, 81.1. On top of that, when you23
put -- you have to have cover or thickness of your24
detention structure. And again, typically youre going25
7/31/2019 Transcript 9.28.10 Dipple Marsden
45/69
Mr. Marsden - Direct 45
to try to stay pretty deep, because the structure1
itself will have some type of limited integrity due to2
depth under the ground. A minimum would be twelve3
inches. So, wed assume twelve inches, another foot.4
So that brings the top of your detention structure to5
about elevation 72.1. Again, thats not assuming --6
Q. Excuse me. 72.1?7
A. 72.1. It was 71 --8
Q. Or 82.1?9
A. 82.1. 82.1. That would bring -- not even10
counting the slope to get the water to that point,11
which would even be higher. That would then tell me12
that the minimum height that you have to have on the13
site is 82.1. Going back through their profile14
reports, which we have here, for example, its Exhibit15
P-83, it shows conceptual elevations of those16
buildings. Building B was at 80. Building A was at17
79.6. That tells me at this point, in order to have a18
system similar to what was in the report done, the19
whole site pretty much has to be raised more than two20
feet, which then now impacts the relative height of the21
property with the surrounding area.22
Q. And as a result of that do you have a23
conclusion as to whether or not there is sufficient24
data to make a determination as to whether or not this25
7/31/2019 Transcript 9.28.10 Dipple Marsden
46/69
Mr. Marsden - Direct 46
design would be approved by the DEP?1
A. Well, what this shows is that theres not enough2
data to accurately determine to say well, this is what3
the height of the buildings going to be, or this is4
what -- where the detention structure is going to be.5
My feeling is DEP is going to look at this and if they6
present it this way, theyre going to question what is7
the outflow based upon the existing parking lot8
condition, meaning the detention and the restricted9
outflow. Because there is no real fact, other than my10
opinion, going back to what the precondition design was11
and theyre probably going to request that. Can it get12
approved? I dont think it can get approved without13
going through that analysis.14
Q. Do you have an opinion as to whether or not15
the -- by the way, attached to your report is an aerial16
photograph. Do you see that?17
A. Yes.18
Q. Could you tell us what that is?19
A. This is an aerial photograph. It came to my20
attention -- it was in the construction departments21
plat files. It wasnt in mine. Theyre plates that22
were developed and taken by -- excuse me -- Aerial23
Photographic Survey, on February 25th, 1973. And going24
through them I found this plate. Its actually25
7/31/2019 Transcript 9.28.10 Dipple Marsden
47/69
Mr. Marsden - Direct 47
somewhere written in white above -- even in that plate,1
it says 2/25-73, shows when it was flown. Next to it2
is the actual series number they use when they do their3
aerial flights. Its 068-73, its on the right-hand4
top side. It looks like one and then 08. I pulled5
this plate out because it shows our site, what it6
looked like in 1973.7
Q. Well, can you direct the court to where8
Birchwood Avenue is, if you want to hold it up to show9
the Judge?10
A. Okay. Actually, if you look at it, as its been11
stapled together, youll see a fan like structure12
there, a fan like structure there. Thats the nursing13
facility.14
THE COURT: Cranford Conva --15
BY THE WITNESS:16
A. Cranford Con -- yeah. And just going up slightly17
to the left is, you can almost see a tree line there,18
darker objects that are going across there. That19
represents trees that are along the edge of that20
property. Above that is all open area, with a little21
dark diagonal slot, which was probably an old tree row,22
that farmers typically use when theyre cleaning their23
fields and theyre putting rocks aside and -- you know,24
so they can be able to farm it. That is approximately25
7/31/2019 Transcript 9.28.10 Dipple Marsden
48/69
Mr. Marsden - Direct 48
in the middle of this proposed site thats housing 235.1
Q. 215?2
A. 215. Im sorry. Now, above that you see a double3
line, very faint. Thats the parking lot to the other4
building. Thats the entranceway to the other5
building. So, you can gauge that just downward of that6
double line and above the fan building, that thats the7
site that we are talking about.8
Q. Was it developed at that point?9
A. No, it wasnt.10
Q. That is the 215 Birchwood site.11
A. Thats correct.12
Q. And this was in 1973?13
A. That was 1973.14
Q. February. Now -- by the way, with respect to15
the proposed detention system that was in P-81, are any16
of those located in the driveway?17
A. The potential location of the underground storm18
water storage systems, two of them. One is fully19
located under a driveway. The one thats furthest20
north is partially, a little less than half of it21
appears to be located under a driveway. The third one22
appears to be located in more of a court area.23
Q. Now, with respect to the ones in the24
driveway, is there any particular structural25
7/31/2019 Transcript 9.28.10 Dipple Marsden
49/69
Mr. Marsden - Direct 49
requirements so that vehicles and trucks and so on can1
drive over them without problem?2
A. Of course thered have to be -- theyd have to3
have structures that would be able to support the loads4
of those vehicles. I mean our typical storm water5
inlets are designed to do that. There are systems out6
there, like the arch, I think Mr. Dipple is alluding7
to. A certain criteria has arch, corrugated arch8
systems or concrete thatll also have the structural9
integrity to support loads under a parking lot or a10
driveway.11
Q. Do you have a conclusion as to whether, based12
on what youve seen from these reports, the impact that13
it would have or whether it would create increased --14
strike that. Do you have an opinion as to whether or15
not the site, with this additional requirement, vis--16
vis the drainage system, or the detention system, is17
suitable for the size of the development as proposed?18
A. Well, based on their reports and the fact that19
they show theres detention going up to the elevation,20
it was, I believe, going up to elevation 79.8 on those21
maps, with the gate fully open, my opinion is I know22
the gate wouldnt be there if it was fully open. So,23
the gate had to be closed to some degree. Therefore,24
there would be more storage in that parking lot. In25
7/31/2019 Transcript 9.28.10 Dipple Marsden
50/69
Mr. Marsden - Cross 50
addition, showing the calculations that were showing1
outflow rates, there would be less existing outflow,2
because the gates were partially closed. So, yes, it3
would bring water into the system sooner if this cri --4
if this concept, the design was held and it would5
negatively impact downstream of us.6
MR. WOODWARD: No further questions, Your7
Honor.8
THE COURT: Cross-examine.9
CROSS-EXAMINATION BY MR. EISDORFER:10
Q. Mr. Marsden, have you inspected the valve11
youve been describing?12
A. No.13
Q. No. So, do you know what its current state14
is?15
A. Well, its current state is nonoperational.16
Q. In what way is it nonoperational?17
A. Through, I believe, probably snowplowing, it was18
bent or knocked over. Both gates -- both gate shafts19
were bent.20
Q. How long have you been municipal engineer at21
Cranford?22
A. A little over six years.23
Q. Has the gate ever been operational during the24
period when youve been municipal engineer?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
51/69
Mr. Marsden - Cross 51
A. I couldnt tell you that. I wasnt there1
initially in my first couple years.2
Q. Im sorry, I dont un --3
A. I was not at the site until later on. So, --4
Q. When was the first time you were at the site?5
A. When we had flooding. 2007.6
Q. And was the gate operational then?7
A. It appeared not to be.8
Q. Have you actually seen the gate anything9
other than fully open?10
A. Well, you cant tell whether the gates fully open11
or not, because you dont know what the height of the12
steering wheel or the shaft was, regulations.13
Q. Do you have any municipal records that14
indicate that --15
A. No, I dont.16
Q. -- that it was anything other than fully17
open?18
A. No.19
Q. So, any -- theres no actual evidence of it20
being full -- of being anything other than fully open?21
A. Well, theres no evidence in knowing how much or22
how little it was open.23
Q. But is there any evidence of it being -- do24
you have any evidence of it being less than fully open?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
52/69
Mr. Marsden - Cross 52
A. No.1
Q. Now, have -- does the -- did the resolution2
approving this project specify the existence of this3
gate valve?4
A. I dont know.5
Q. Did it specify that it had to be maintained6
at being less than fully open?7
A. I dont know.8
Q. At the time when this project was -- you9
indicated that the project was constructed sometime in10
the 1970s, after 1973, but you thought maybe by 1978,11
is that right?12
A. It could, yeah, it could be by then, later. 76,13
its tough to --14
Q. At that point there was no state regulation15
of storm water, was there?16
A. 76. 78, yes, we were doing storm water17
regulation.18
Q. But was it --19
A. Flood hazard regulation.20
Q. Yeah. The first state regulations didnt21
come in until 1983, didnt -- did they?22
A. No, I believe we were doing flood hazard23
regulations. I know locally we were doing detention24
basins and facilities.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
53/69
Mr. Marsden - Cross 53
Q. When you say locally, you dont mean in --1
A. I mean in Union County.2
Q. You dont mean in Cranford?3
A. And -- well, part of Cranford did through Union4
County. The Lenape Park detention basin, I think. We5
have the Carpenter Street detention basin. We were all6
aware of the increase in impervious cover issues.7
Q. At -- well, was there state regulation at8
that point, in the 19 -- at the time this was built?9
A. I couldnt say directly --10
Q. You dont know?11
A. -- without looking it up.12
Q. You dont know?13
A. Not right now.14
Q. Cranford didnt have an ordinance until 1983,15
did it?16
A. No.17
Q. So, there was no local regulation?18
A. There was no local regulation.19
Q. So, you dont know what standards were20
applied when this project was approved, do you?21
A. That is correct.22
Q. Any -- and it is merely inference on your23
part that the standards were reproducing existing24
conditions, isnt that right?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
54/69
Mr. Marsden - Cross 54
A. Its -- say -- can you try that again?1
Q. I asked you if it is merely inference on your2
part that the standards that would have been applied at3
that point were reproducing existing conditions, is4
that right?5
A. Based upon -- yes. Base -- yes.6
Q. In fact, its not inference, its7
speculation, because you dont really know. You dont8
have --9
MR. WOODWARD: Objection, argumentative.10
CONTINUED BY MR. EISDORFER:11
Q. You havent seen the resolution, have you?12
A. No.13
Q. There was no ordinance.14
A. Thats correct.15
Q. There was no state regulation.16
A. Dont know.17
Q. So, you dont have any actual knowledge of18
what standard was applied then.19
A. Direct knowledge, no.20
Q. Youre merely speculating as to what you21
think might -- would, could or shouldve been applied.22
A. My speculation is what we have applied in the mid-23
70s, yes.24
Q. Now, have you modeled, have you done the25
7/31/2019 Transcript 9.28.10 Dipple Marsden
55/69
Mr. Marsden - Cross 55
calculations as to what the affect of partially closing1
the valve would be?2
A. No. Thats -- well, my task was to review the3
report. We have consultants, you know, who will look4
into that if it ever came up to be a request.5
Q. So, you cant tell us how much additional6
flood -- how much additional water storage there would7
be if it were fully closed, can you?8
A. Well, could I now?9
Q. Now.10
A. No.11
Q. No.12
A. I couldnt --13
Q. You havent done the calculations?14
A. Well, --15
MR. WOODWARD: Objection, Your Honor. Hes16
interrupting the witness. The witness hadnt finished17
his answer.18
THE COURT: Lets let him finish his answer.19
MR. EISDORFER: Okay.20
BY THE WITNESS:21
A. What I do know is, through my experience of these22
type structure designs, by reducing the outflow you23
will increase storage. You will reduce rate of24
outflow.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
56/69
Mr. Marsden - Cross 56
Q. But you cant tell us how much?1
A. I could not tell you exactly how much.2
Q. So, you cant -- you cannot tell us what the3
significance, in quantitative terms, would be of4
closing the valve a little bit, a little more or a5
little more than that, can you?6
A. I can tell you that there is an increase in7
outflow, if they stay -- if theyre opened more. I can8
tell you that if they are closed it will be decreased9
in outflow rate. The actual ratio and significance I10
cant tell you. I did not do those calculations.11
Q. Now, the curb on the existing parking lot is12
six inches high, is that correct?13
A. I dont know exactly. It may be a little less14
because its been resurfaced or whatever. I dont -- I15
cant tell you.16
Q. Is that something you measured when you did17
your survey?18
A. They probably did. I didnt remember -- memorize19
all top of curb and bottom of curb elevations.20
Q. If the water gets above the curb what21
happens?22
A. Well, if it gets above the curb, it actually wont23
get above the curb --24
Q. Well, if it gets above the curb what happens?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
57/69
Mr. Marsden - Cross 57
A. It cant get above the curb in all but one1
location.2
Q. Well, what happens when the water gets high3
enough to get above the curb?4
A. Well, it then spills over.5
Q. Spills over.6
A. Thats what your consultant, Mr. Dipples design7
showed that it would spill over the curb in the lower8
left-hand side of that map youre working with.9
Q. Now, that sets a limit on how much water can10
be detained.11
A. Thats correct.12
Q. It cant -- it can never hold more than the13
volume --14
A. That volume of water.15
Q. That volume of water.16
A. Thats right.17
Q. And so thats the maximum.18
A. That would be the maximum.19
Q. Now, so did you calculate what the effect of20
that maximum would be?21
A. As I said, I didnt do any calculations, in a22
large degree. I do know theres three weirs there.23
One -- the other two structures are the driveway24
entrances and exits to the parking lot. And that lower25
7/31/2019 Transcript 9.28.10 Dipple Marsden
58/69
Mr. Marsden - Cross 58
left-hand corner acts as a weir, as Mr. Dipple1
testified.2
Q. Now, if -- youve testified that this manual3
valve was set at some predetermined level. Do you know4
what the predetermined level was?5
A. No. I said that.6
Q. Under what circumstances would people change7
it, would someone go out there and change the level?8
A. Well, they would change the level -- they would9
open it up all the way to maintain it. Meaning that if10
its opened and sediment developed in that last11
chamber, its easy to flush a twelve inch pipe thats12
completely open without having a restriction in the13
middle of it than it is to have an orifice restriction.14
I can give you an example that DEP and I discussed in15
the 70s about restricted outflows. We have -- there16
was a regulation of DEP in the 70s that required a17
minimum orifice size of three inches. Through the18
state, the developers, we had issues about that minimum19
size because it was a maintenance problem. Outcomes of20
that were options to be able to open up your outflow21
structure with plates or possibly these type of gates.22
The plates Im talking about would be in the chamber23
itself before it leads out. It would be put in front24
of the twelve inch pipe that had a restricted burned25
7/31/2019 Transcript 9.28.10 Dipple Marsden
59/69
Mr. Marsden - Cross 59
out circle that would say thats your outflow. When1
its time to maintain it youd pull it out, youd flush2
your pipe system. Public works departments had3
equipment that would push water through it or sweep a4
pipe to get this type of thing clean. You have to5
maintain your outflow structures. That couldve been6
one way of having your restriction and then being able7
to open the valve up and then flush your pipe out8
without hitting that restriction.9
Q. So, do you imagine that that valve was only10
used for maintenance?11
A. I believe that valve was only used for12
maintenance, tied into detention.13
Q. So -- but the valve itself was just used for14
maintenance?15
A. The valve was set for detaining the water at a16
certain reduced opening. It was decided to use a valve17
possibly because of maintenance.18
Q. Is that how you would design a system now?19
A. Design a system now?20
Q. Would you use a -- would you design a system21
now with a manually operated valve?22
A. No, Id probably use a plate in front of it.23
Q. Would -- if -- as a municipal engineer, would24
you approve a system now designed with a manually25
7/31/2019 Transcript 9.28.10 Dipple Marsden
60/69
Mr. Marsden - Cross 60
operated --1
A. With a manually operating valve, no, because it2
adds to a maintenance headache. Another point where3
youd have to maintain the valve, where its a lot4
easier to maintain or remove a steel plate and replace5
it.6
Q. So, but your assumption is that the municipal7
engineer in 1970 had a different view than you do?8
A. Well, an engineer that was responsible for the9
site criteria, yes. I dont know whether it was a10
municipal engineer or a county engineer at that time.11
Q. But had a different opinion --12
A. Had a different opinion.13
Q. -- than you do.14
A. And it was fresh in our design criteria detention15
and the answer would be yes.16
Q. And -- but you dont know what that opinion17
was?18
A. I have no idea.19
MR. WOODWARD: Objection, Your Honor,20
interruption.21
MR. EISDORFER: Im sorry.22
BY THE WITNESS:23
A. I have no idea.24
Q. You have no idea what that opinion was?25
7/31/2019 Transcript 9.28.10 Dipple Marsden
61/69
Mr. Marsden - Cross 61
A. No, what that opinion was. I was not -- I dont1
even know who did the --2
Q. Now, based on your analysis, do you have an3
opinion whether its possible to design this site along4
the lines of the concept plans that have been proposed,5
that would comply with NJDEP regulations?6
A. Well, as I stated earlier, in order to properly7
determine the outflow you would have to use the pre-8
assumption that the site was undeveloped. If they use9
that criteria, I dont see how DEP would not approve.10
Q. Assuming thats not the case, assuming that11
the standard is the existing -- the comparison is the12
existing conditions. Do you have an opinion as to13
whether the -- that the site can -- that this can be14
presented to DEP and it would -- let me take it back.15
Assuming that we compare it to the existing conditions,16
which is the valve is fully open, do you have an17
opinion as to whether a storm water system can be18
designed that would comply with the DEP regulations?19
A. Im not sure I understand the question. With the20
valve completely open can a storm water system be21
designed --22
Q. Assuming that the existing conditions were23
comparing to that needed to be mimicked is the valve24
was fully open.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
62/69
Mr. Marsden - Cross 62
A. Well, I guess maybe Im misunderstanding the1
question. Because I can turn around, as I stated a2
minute ago, a restrictive valve flow orifi -- a3
restrictive plate in that one chamber before it gets to4
the gate to make it comply.5
Q. Now, my question is, is it infeasible to6
comply with the DEP regulations on this site?7
MR. WOODWARD: Objection as to specificity.8
CONTINUED BY MR. EISDORFER:9
Q. Assuming the site plan that was presented in10
-- the July 30th site plan.11
A. Not counting storm water, assuming that they can12
do some form of detention that would make the site13
developable. I mean --14
Q. Well, thats my question. Is it impossible15
to design a storm water system that would comply with16
DEP regulations to that site?17
A. Talking to an engineer, no. I mean you can -- we18
can design whatever it takes, whatever the cost is, to19
make it work. Its a very tight site. Its not going20
to be an easy design. It would be more costly. It21
wouldnt be a simple aboveground structure, as your --22
Mr. Dipple testified. It would have to be some type of23
underground system.24
Q. But its your opinion that it could be25
7/31/2019 Transcript 9.28.10 Dipple Marsden
63/69
Mr. Marsden - Cross 63
designed?1
A. Oh, sure.2
MR. EISDORFER: I have no further questions.3
MR. WOODWARD: No further questions, Your4
Honor.5
THE COURT: Okay, you can step down. Oh,6
wait, wait, wait. Not yet. Sorry. Ms. McKenzie?7
MS. MC KENZIE: Yes, I just have a couple of8
quick questions.9
THE COURT: Good, good.10
THE WITNESS: Where is she?11
CROSS-EXAMINATION BY MS. MC KENZIE:12
Q. Not long. Ive got to find it. Okay, Mr.13
Marsden, in your experience, what does -- when the14
NJDEP looks at the existing hydraulic condition of the15
site, what is it that theyre looking at normally?16
When they -- if presented with a site such as this,17
what would they consider to be the existing hydraulic18
condition on the site?19
A. Well, theyd look at what features are out there20
presently; the existing structure, the existing21
terrain, the existing soils and its permeability22
aspects. The -- its vegetative state.23
Q. Okay. So, in your opinion, how would the DEP24
treat the drainage structures that are there, those25
7/31/2019 Transcript 9.28.10 Dipple Marsden
64/69
Mr. Marsden - Cross 64
existing drainage structures? Do you have an opinion1
as to how they would respond to those?2
A. Well, because they have the restricted ori -- have3
the orif -- the gate valves in there, because the4
parking lot is as flat as it is, and there is a5
question to whether the existing site had detention on6
it already. They would then, in my opinion, consider7
-- make the request that the site should be considered8
undeveloped when doing the design criteria for your new9
system.10
Q. And have you been involved in applications to11
DEP where this kind of situation has arisen and that12
has been their reaction?13
A. I have not gotten to that point, because we have14
had systems where farmers had facilities, have had15
storage area, ponding, that we just assumed didnt16
exist as a detention. And we went ahead with an17
undeveloped condition and developed from there.18
Q. I see. Okay. And you had indicated that you19
main -- you had designed systems with these kinds of20
gate valves in the past, in your experience.21
A. Well, I know they were talked about. I have seen22
designed system -- I have not done that myself.23
Q. Okay. Because in the systems that youre24
aware of were -- how was the management of the gate25
7/31/2019 Transcript 9.28.10 Dipple Marsden
65/69
Mr. Marsden - Cross 65
valve handled?1
A. Well, the only management or the maintenance of2
the gate valves that would be handled, and I cant tell3
you specifically, because it was a long time ago, would4
be basically a maintenance program, just like we do now5
for detention structures. We have a maintenance6
program that says after so many storms, or storms of7
major extent, we need you to make sure you clean out8
your detention system. That gate valve may possibly be9
used at that time, open it up, to flush out the outflow10
structure so it could be cleaned. Remember, when you11
put a gate valve in its going to require a12
restriction. Water, sediment, pebbles from gravel13
driveways or stone driveways, leaves, would hit this14
restriction and then drop down. So, then it would15
start to build up. You have to occasionally get that16
cleaned out. To clean it out you got to remove the17
restriction and flush it.18
Q. And who would normally do that?19
A. That, in this case, wouldve been somebody thats,20
because it was a private system, would be somebody in21
the maintenance of that building.22
Q. But there was no mechanism in place where23
public works checked on whether that was undertaken?24
A. At that time I dont know. I mean now we do. In25
7/31/2019 Transcript 9.28.10 Dipple Marsden
66/69
Mr. Marsden - Cross / Redirect 66
my term, six year plus term here, we do regulate and1
keep an eye on those structures, because we have2
reports that mandate maintenance.3
Q. And -- but you indicated that since you have4
been on the site youre not aware of any maintenance --5
A. No.6
Q. -- thats been undertaken?7
A. Thats correct.8
Q. Is there an easement on the property to get9
to those --10
A. No, there arent.11
Q. For maintenance purposes to get to the12
valves?13
A. No. Its a private system.14
MS. MC KENZIE: Okay, thank you very much.15
MR. WOODWARD: Your Honor, just if I may.16
REDIRECT EXAMINATION BY MR. WOODWARD:17
Q. Mr. -- you were asked -- just the last18
question that you were asked was whether there was any19
easement to get to the system. But in fact, isnt20
there a sewer easement on this property?21
A. As a sanitary sewer, but not storm sewer related.22
Q. And that runs across the back of this23
property?24
A. Thats correct.25
7/31/2019 Transcript 9.28.10 Dipple Marsden
67/69
Mr. Marsden - Recross 67
Q. Over to the Casino Brook area?1
A. Correct.2
MR. WOODWARD: No further questions, Your3
Honor.4
MR. EISDORFER: Just follow up on one of Ms.5
McKenzies questions.6
RECROSS-EXAMINATION BY MR. EISDORFER:7
Q. Have you been involved in any DEP8
applications in which there were existing drainage9
structures where DEP said go back to the predevelopment10
conditions in designing your new drainage?11
A. Well, a system, I stated Im involved, and I12
believe it was Society Hill at Burnage, there was a13
swale and a pond design. We assumed that that, even14
before going to DEP, we did not incorporate that.15
Q. But that wasnt a DEP decision, that was the16
developers --17
A. That was our decision.18
Q. The developers decision?19
A. Thats correct.20
Q. Are you aware of any instances in which there21
are existing manmade drainage facilities where DEP has22
said go back to the predevelopment conditions?23
A. Well, Im aware that by regulation, as I stated24
last time in testimony, which is in our new storm water25
7/31/2019 Transcript 9.28.10 Dipple Marsden
68/69
Mr. Marsden - Recross 68
management, that there is the option or the ability to1
reanalyze the system, if there is signs that there is a2
condition that shows what preconditions should be.3
Q. Well, but that regulation says you look back4
five years, doesnt it?5
A. I dont know an exact answer for that one. I6
dont have it memorized anymore.7
MR. EISDORFER: I have no further questions.8
THE WITNESS: Thank you.9
THE COURT: Anything else, anyone?10
MR. WOODWARD: No thanks, Your Honor.11
MS. MC KENZIE: No.12
THE COURT: Okay. You can step down.13
THE WITNESS: Thank you.14
THE COURT: So, I guess next is -- anything15
further, Mr. Woodward?16
MR. WOODWARD: Yes. I have Mr. Creelman17
here.18
THE COURT: Oh, okay. Should we break for19
lunch and start --20
MR. WOODWARD: I think it might be a good21
idea. Hell be a while.22
THE COURT: Okay. All right, good. So,23
well see you at 1:30. Enjoy your lunch.24
(End of the A.M. session of this proceeding)25
7/31/2019 Transcript 9.28.10 Dipple Marsden
69/69
69
* * * * * * * * * * * *1
CERTIFICATION2
I, Regina R. Caldwell, the assigned transcriber,3
do hereby certify that the foregoing transcript of4
proceedings in the matter of CRANFORD DEVELOPMENT5
ASSOCIATES VS. TOWNSHIP OF CRANFORD, heard in the Union6
County Superior Court, Law Division, Civil Part, on7
September 28, 2010, Tape #236/10, Index #0890 to the8
end, and Tape #237/10, Index #0001 to #1200, is9
prepared in full compliance with the current Transcript10
Format for Judicial Proceedings and is a true and11
accurate non-compressed transcript of the proceedings12
as recorded.13
AUTOMATED TRANSCRIPTION SERVICES14
15
By: Regina Caldwell _357_____________16
Regina Caldwell A.O.C. Number17
Date: October 9, 201018
19
20
21